Quincy sold Prevagen dietary supplements, claiming (1) that
the supplements improve memory and provide other cognitive benefits, (2) that
these effects are clinically proven, and (3) that the products’ active
ingredient “supplements” brain proteins that are lost with age. The FTC alleged
that Quincy conducted a randomized, double-blind, placebo-controlled study that
contradicted these representations and showed no statistically significant
improvement in the memory and cognition of participants taking Prevagen over
participants taking a placebo. Quincy subsequently “conducted more than 30 post
hoc analyses of the results” of the study, and “the vast majority of these post
hoc comparisons failed to show statistical significance.” While the study showed
a “few positive findings on isolated tasks for small groups of the study
population,” these findings allegedly did not “provide reliable evidence of a
treatment effect.” The district court, in a poorly reasoned opinion, dismissedthe complaint because the post hoc analyses must have shown something. The court
of appeals summarily reversed.

“The FTC has stated a plausible claim that Quincy’s
representations about Prevagen are contradicted by the results of Quincy’s
clinical trial and are thus materially deceptive in violation of the FTC Act
and New York General Business Law.” For example, Quincy claimed broadly that in
a clinical study “Prevagen improved memory for most subjects within 90 days,” yet
this wasn’t true: the study “failed to show a statistically significant improvement
in the treatment group over the placebo group on any of the nine computerized
cognitive tasks.” Not only did this make plausible that it was deceptive to claim
that “the majority of people” experience cognitive improvement from taking
Prevagen, but the FTC also stated a claim that Quincy’s representations that
this cognitive improvement is clinically supported are deceptive. Further, the
FTC alleges that Quincy’s claim that the active ingredient in Prevagen, apoaequorin,
“enters the human brain to supplement endogenous proteins that are lost during
the natural process of aging” was false. Quincy’s “safety studies show that
apoaequorin is rapidly digested in the stomach and broken down into amino acids
and small peptides like any other dietary protein.” “Drawing reasonable
inferences in favor of the FTC, as we must, the FTC plausibly alleged that
Quincy’s representations about Prevagen’s active ingredient entering the brain
are false.” The district court erred in dismissing the complaint and declining
to exercise supplemental jurisdiction over New York’s claims.

H/T Daniel Kegan. Dr. Pohl took before-and-after photographs
of his cosmetic dental work for his Florida cosmetic dentistry practice’s
website. He took such photos of “Belinda” in 2004. “The photos consist of two
direct shots of the patient’s teeth—one before the dental work and the other
after the dental work. The patient is revealing her teeth and, in both shots,
the photo consists of her teeth, her lips, and a small area around the mouth.”

the photos at issue

He sued defendants for designing/developing
seven websites on which the images appeared without his permission.Although the deposit copy of the site he used
for his copyright registration wasn’t in the record, the jury could find that
it contained the images at issue.

The court then found that the before-and-after photos
weren’t copyrightable because no reasonable jury could find the photos were
sufficiently creative or original. Though the bar was low, the photos failed to
pass it.Highly informative product
photos intended to sell the product through accurate depiction may lack
sufficient creativity to be protected, and that was what happened here. Such
photos “lack any creativity or originality primarily because they serve a
utilitarian end—to identify goods or services that a viewing customer can
expect from the business.”

Pohl argued that he was responsible for “selecting the
camera, posing the subject matter, and determining the lighting and photo angle
before taking the photographs.” But none of this involved creativity.He didn’t remember what kind of camera he
used—even whether it was digital or film.He didn’t remember whether Belinda was sitting or standing for the
photos. “To the extent he posed her for
the camera, it was to tilt her head, lift her chin up or down, instruct her to
smile, or to tell her to look at the camera. As for lighting, there is no
creativity in merely having sufficient lighting in the room ….” For the angle,
he testified that he moved “the camera in and out until I get it in focus,” which
the court deemed “the most rudimentary and basic task for photographers since
the era of the daguerreotype.” The entire process took no more than five
minutes.

If utilitarian photos of Chinese food in different patterns
are uncopyrightable, as a previous case held, then these photos are clearly
uncopyrightable; “directing a subject to smile and moving a camera to focus on
a portion of the subject’s face” has even less of a “creative spark.”

Webster is a luthier and guitar technician who goes by
“Buddy Blaze.” Around 1985, he modified a Dean ML guitar and had the guitar
painted blue with a lightning graphic. He gave the guitar to a friend, Darrell
Abbott, who called it “The Dean from Hell” (DFH) and then went on to become a
guitarist in the band Pantera known as “Dimebag Darrell.” In 2004, Abbott
signed an “endorsement-type” contract with Dean Guitars (and was then
murdered). Dean Guitars began to sell copies of the DFH. After Abbott’s funeral, the former owner of Dean Guitars contacted Abbott
about painting a copy of the DFH for release, but Webster explained that another person had painted the original version
at his direction. After he knew Dean Guitars was selling DFH replicas, Webster
also lent photographs to Dean Guitars for a display at the 2005 National
Association of Music Merchants tradeshow which linked Webster to Abbott and the
DFH. He testified, “I was okay with them displaying it at the booth during the
show.”

The DFH/CFH

By 2006, Webster knew Dean Guitars was selling the DFH as a
“mass-market product” with several price points and versions. He was unhappy
that Dean Guitars was issuing a cheap, imported version of the DFH called
Cowboy From Hell or DFH/CFH. He told the then-CEO of Dean Guitars, “we’ve got
to work this out…. I’m not okay with what’s going on,” and “you can’t do that
without, you know, my blessing, without a release from me.” In 2007, the
then-CEO responded that “I have taken some time and spoken to several ‘people
in the know’ and the consensus concerning Dime’s graphic is that Dime’s estate
is the legal owner of it. With that said, I still would like to work with you
on a Dime project because I am not about making enemies but keeping friends.” Webster
objected; Dean Guitars told him to sue the estate as the owner/licensor of the
graphic. Webster continued to object.

In 2009, Webster worked on his own signature guitar, the
Buddy Blaze ML, produced and sold by Dean Guitars; he promoted the Buddy Blaze
ML alongside the then-CEO and provided a brief history of the DFH and compared
his model with the DFH. He’s appeared and been referenced in other videos
apparently produced by Dean Guitars, whose website at one time linked two
YouTube videos featuring interviews with Webster in which he gave the history
of DFH in front of the original DFH and promoted his own guitar and volunteered
information about Abbott and the DFH. Neither video made any mention of DFH
reissues.

Buddy Blaze ML

In 2016, he registered a copyright in the DFH lightning
graphic design and sued for copyright infringement, civil conspiracy and unfair
competition in 2017.

The court found the copyright infringement and civil
conspiracy claims time-barred. Though a copyright infringement claim separately
accrues with each infringing act, “[w]here the gravamen of a copyright
infringement suit is ownership, and a freestanding ownership claim would be
time-barred, any infringement claims are also barred.” Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) didn’t change the rule that the
an ownership claim accrues only once. In the Sixth and Ninth Circuits, such a
claim accrues “when plain and express repudiation of co-ownership is
communicated to the claimant.” In the First, Second, Fifth, and Seventh
Circuits, the clock starts “when the plaintiff learns, or should as a
reasonable person have learned, that the defendant was violating his rights.” Under
either test, the claim here was time-barred.

Dean Guitars’ “olive branch” offer of a separate relic DFH
with the possibility of royalties for Webster didn’t make its repudiation of Webster’s
claim to ownership any less express. The language was clear that any royalties
would have stemmed from Webster’s work with a possible future relic model, not from
the original DFH. Further, Dean Guitars told Webster to sue the estate.
Webster’s delay, allegedly out of respect for Abbott’s family following his
death and then because of Webster’s own family issues and the then-CEO’s
failing health, weren’t justifications that would pause the legal clock.

Although the unfair competition claims weren’t preempted
(they didn’t depend on ownership or infringement of the copyrighted design),
they also failed. Webster objected to the use image “for years in connection
with the historical fact of his creation of the Dean From Hell,” especially as
it relates to the reissues. As a result, he alleged, “people came to think that
[Plaintiff] was wealthy or had authorized these uses of his name and likeness”
and this association damaged his reputation. But his allegations and evidence
couldn’t support this claim.

Setting aside issues with proving
injury and a possible fair use defense, the most fundamental flaw in
Plaintiff’s argument is that Defendants’ statements were neither false nor
misleading. … Most of the statements at issue concerning the history of the DFH
and Plaintiff’s friendship with Mr. Abbott are made by Plaintiff himself.
Importantly, Defendants made no misleading statements with respect to any
endorsement or sponsorship of the DFH reissues, or even Dean Guitars itself. In
fact, there are no such statements or implicit suggestions linking Plaintiff to
the replicas at all.

A NAMM attendee also stated
in his declaration that “I heard Dean representatives using Buddy’s name when
selling the Dean From Hell copies. The gist of their statements was that Dean
was selling guitars like the one that Buddy Blaze re-built for Darrell.” But
there was nothing untrue or misleading about such statements.

“There is no suggestion in any material Plaintiff sets forth
that Defendants used Plaintiff’s name or likeness to sell or market the DFH
reissues, or any suggestion that Plaintiff endorsed or derives income from the
guitars.” Webster voluntarily participated in each video, and couldn’t identify
any harm therefrom.

Webster’s invasion of privacy by misappropriation claim (right
of publicity under Texas law) also failed. Texas requires that (1) the
defendant appropriated the plaintiff’s name or likeness for the value
associated with it; (2) the plaintiff can be identified from the publication;
and (3) there was some advantage or benefit to the defendant. Defendants
pointed out that Webster voluntarily participated in the videos, but Webster
argued that he permitted use as it related to the history of DFH, but not
reissues of the guitar. The court reasoned that Webster “certainly had some
idea of the extent of the publication of the interviews yet nonetheless
consented. Each video appears to have been filmed by Dean Guitars and,
moreover, at trade shows for music merchants. As for the reissues, Plaintiff no
doubt knew that the guitar Defendant Haney signed in one of the NAMM videos was
not the original DFH. Plaintiff nonetheless voluntarily related the history of
the DFH to the interviewer. Reissues do not appear and are not referenced in
any other video featuring Plaintiff.”

Ultimately, there was insufficient evidence that defendants
appropriated Webster’s name or likeness for the value associated with it. At
most, they used his name (when he wasn’t himself participating in a video) only to
provide historical background. In addition, the claims based on the videos were
“extracted from either an old Dean Guitars website, or from the vastness of the
internet” and there was no evidence that these old videos were even used as ads
to sell the reissues.

Webster is a luthier and guitar technician who goes by
“Buddy Blaze.” Around 1985, he modified a Dean ML guitar and had the guitar
painted blue with a lightning graphic. He gave the guitar to a friend, Darrell
Abbott, who called it “The Dean from Hell” (DFH) and then went on to become a
guitarist in the band Pantera known as “Dimebag Darrell.” In 2004, Abbott
signed an “endorsement-type” contract with Dean Guitars (and was then
murdered). Dean Guitars began to sell copies of the DFH. After Abbott’s funeral, the former owner of Dean Guitars contacted Abbott
about painting a copy of the DFH for release, but Webster explained that another person had painted the original version
at his direction. After he knew Dean Guitars was selling DFH replicas, Webster
also lent photographs to Dean Guitars for a display at the 2005 National
Association of Music Merchants tradeshow which linked Webster to Abbott and the
DFH. He testified, “I was okay with them displaying it at the booth during the
show.”

The DFH/CFH

By 2006, Webster knew Dean Guitars was selling the DFH as a
“mass-market product” with several price points and versions. He was unhappy
that Dean Guitars was issuing a cheap, imported version of the DFH called
Cowboy From Hell or DFH/CFH. He told the then-CEO of Dean Guitars, “we’ve got
to work this out…. I’m not okay with what’s going on,” and “you can’t do that
without, you know, my blessing, without a release from me.” In 2007, the
then-CEO responded that “I have taken some time and spoken to several ‘people
in the know’ and the consensus concerning Dime’s graphic is that Dime’s estate
is the legal owner of it. With that said, I still would like to work with you
on a Dime project because I am not about making enemies but keeping friends.” Webster
objected; Dean Guitars told him to sue the estate as the owner/licensor of the
graphic. Webster continued to object.

In 2009, Webster worked on his own signature guitar, the
Buddy Blaze ML, produced and sold by Dean Guitars; he promoted the Buddy Blaze
ML alongside the then-CEO and provided a brief history of the DFH and compared
his model with the DFH. He’s appeared and been referenced in other videos
apparently produced by Dean Guitars, whose website at one time linked two
YouTube videos featuring interviews with Webster in which he gave the history
of DFH in front of the original DFH and promoted his own guitar and volunteered
information about Abbott and the DFH. Neither video made any mention of DFH
reissues.

Buddy Blaze ML

In 2016, he registered a copyright in the DFH lightning
graphic design and sued for copyright infringement, civil conspiracy and unfair
competition in 2017.

The court found the copyright infringement and civil
conspiracy claims time-barred. Though a copyright infringement claim separately
accrues with each infringing act, “[w]here the gravamen of a copyright
infringement suit is ownership, and a freestanding ownership claim would be
time-barred, any infringement claims are also barred.” Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) didn’t change the rule that the
an ownership claim accrues only once. In the Sixth and Ninth Circuits, such a
claim accrues “when plain and express repudiation of co-ownership is
communicated to the claimant.” In the First, Second, Fifth, and Seventh
Circuits, the clock starts “when the plaintiff learns, or should as a
reasonable person have learned, that the defendant was violating his rights.” Under
either test, the claim here was time-barred.

Dean Guitars’ “olive branch” offer of a separate relic DFH
with the possibility of royalties for Webster didn’t make its repudiation of Webster’s
claim to ownership any less express. The language was clear that any royalties
would have stemmed from Webster’s work with a possible future relic model, not from
the original DFH. Further, Dean Guitars told Webster to sue the estate.
Webster’s delay, allegedly out of respect for Abbott’s family following his
death and then because of Webster’s own family issues and the then-CEO’s
failing health, weren’t justifications that would pause the legal clock.

Although the unfair competition claims weren’t preempted
(they didn’t depend on ownership or infringement of the copyrighted design),
they also failed. Webster objected to the use image “for years in connection
with the historical fact of his creation of the Dean From Hell,” especially as
it relates to the reissues. As a result, he alleged, “people came to think that
[Plaintiff] was wealthy or had authorized these uses of his name and likeness”
and this association damaged his reputation. But his allegations and evidence
couldn’t support this claim.

Setting aside issues with proving
injury and a possible fair use defense, the most fundamental flaw in
Plaintiff’s argument is that Defendants’ statements were neither false nor
misleading. … Most of the statements at issue concerning the history of the DFH
and Plaintiff’s friendship with Mr. Abbott are made by Plaintiff himself.
Importantly, Defendants made no misleading statements with respect to any
endorsement or sponsorship of the DFH reissues, or even Dean Guitars itself. In
fact, there are no such statements or implicit suggestions linking Plaintiff to
the replicas at all.

A NAMM attendee also stated
in his declaration that “I heard Dean representatives using Buddy’s name when
selling the Dean From Hell copies. The gist of their statements was that Dean
was selling guitars like the one that Buddy Blaze re-built for Darrell.” But
there was nothing untrue or misleading about such statements.

“There is no suggestion in any material Plaintiff sets forth
that Defendants used Plaintiff’s name or likeness to sell or market the DFH
reissues, or any suggestion that Plaintiff endorsed or derives income from the
guitars.” Webster voluntarily participated in each video, and couldn’t identify
any harm therefrom.

Webster’s invasion of privacy by misappropriation claim (right
of publicity under Texas law) also failed. Texas requires that (1) the
defendant appropriated the plaintiff’s name or likeness for the value
associated with it; (2) the plaintiff can be identified from the publication;
and (3) there was some advantage or benefit to the defendant. Defendants
pointed out that Webster voluntarily participated in the videos, but Webster
argued that he permitted use as it related to the history of DFH, but not
reissues of the guitar. The court reasoned that Webster “certainly had some
idea of the extent of the publication of the interviews yet nonetheless
consented. Each video appears to have been filmed by Dean Guitars and,
moreover, at trade shows for music merchants. As for the reissues, Plaintiff no
doubt knew that the guitar Defendant Haney signed in one of the NAMM videos was
not the original DFH. Plaintiff nonetheless voluntarily related the history of
the DFH to the interviewer. Reissues do not appear and are not referenced in
any other video featuring Plaintiff.”

Ultimately, there was insufficient evidence that defendants
appropriated Webster’s name or likeness for the value associated with it. At
most, they used his name (when he wasn’t himself participating in a video) only to
provide historical background. In addition, the claims based on the videos were
“extracted from either an old Dean Guitars website, or from the vastness of the
internet” and there was no evidence that these old videos were even used as ads
to sell the reissues.

Nutrition Distribution sued Pep for false advertising under
the Lanham Act, alleging that its competitor, a supplement company, falsely
advertised certain prescription-only drugs and synthetic peptides as “research
peptides and chemicals” that are “not for human consumption” and “intended for
laboratory research only” while also marketing the products for personal use
and consumption by bodybuilders, which is misleading because Pep fails to
disclose that the [roducts are banned from sporting events and pose health and
safety risks. Pep’s website states, for example, that one product has
“undergone several recent studies … reveal[ing] rises in lean body mass and
decreases in body fat,” and “a considerable rise in strength, well being, along
with healing possibilities”; another product “enhance[s] bone toughness as well
as stop[s] weakening of bones”; and another product “decreases the risk and
severity of atherosclerosis.”

A page also states:

All customers represent and warrant
that through their own review and study that they are fully aware and
knowledgeable about the following:

The[] government regulations
regarding the importation, purchase, possession and use of research products
and other peptides.

The health and safety hazards
associated with the handling of our products in a research setting.

That our products are NOT intended
to be used as a food additive, drug, vitamin, supplement, cosmetic or any other
inappropriate application. Such a sale would be otherwise denied.

Other allegedly disingenuous pages state: “Safety
Information: For Research Use Only. Not Intended for Diagnostic or Human Use.
Information is for educational purposes and product is not intended to treat,
cure, or diagnose any condition or disease” and “All products are intended for
laboratory and research use only, unless otherwise explicitly stated. They are
not intended for human ingestion, use, or for use in products that may be
ingested.”

Somehow, however, ads for the products turned up on worldclassbodybuilding.com
and peakmuscle.com.Moreover, the
products are allegedly intended for human consumption given that they’re “sold
in liquid form in dropper vials, for easy oral use, along with the amount of
liquid to take for an active oral dose.” Pep allegedly targets “bodybuilders,
athletes, and fitness enthusiasts,” using social media and terminology specific
to that audience. For example, an affiliate offered a free give away via social
media post, and one customer tagged an amateur bodybuilding competitor in the
post.

The court granted summary judgment to Pep for failure to
show literal falsity.The problem here
seems to be a contradiction: the clear warnings against human consumption are
combined with marketing to human consumers, in a wink-wink-nudge-nudge fashion.Pep argued that failure to disclose safety
risks wasn’t false advertising (which is not the case, though it’s often harder
to show falsity by omission than to show affirmative falsity) and that use of a
particular advertising forum couldn’t constitute falsity (which I think is also
wrong as a blanket statement: use of a forum itself can make a representation
that the products advertised are appropriate for the target market).

The court seems to have answered a slightly different question, framing the issue
as whether the claims “for research purposes only” and “not for human
consumption” were literally false, and it then concluded that there was no
evidence that these statements were false.The fact that the products pose health risks to humans wasn’t
inconsistent with those statements. “To demonstrate falsity by necessary
implication, there must be evidence showing that a particular unambiguous
conclusion ‘necessarily flow[s]’ from the Representations in the context of the
Product marketing, and that the conclusion is false. There is no evidence in
the record demonstrating an unambiguous message necessarily implied by the
Representations in the context of the Product marketing.” There was also no
evidence submitted of a false implicit message.[It seems that one possibility here, other than consumer survey evidence,
would be expert evidence about how bodybuilders are induced to try unapproved
products.Interesting question about how
to frame the survey: in some sense, you’re looking for bodybuilders/other
targets to explain how they’d react to seeing an ad for these products in a
bodybuilding context. I am guessing they’d
infer that the products could be used by humans to improve performance, given
that the only point of advertising them to bodybuilders instead of to research
scientists is to suggest that bodybuilders try them.]

Without more, the record (viewed in the light most favorable
to plaintiff) showed only that defendants advertised to bodybuilders online,
described the products’ putative benefits, sold consumer-usable formulations,
and didn’t provide information about health risks or anti-doping bans.That wasn’t enough to show falsity as a logically
necessary conclusion.[I suspect a
government agency could get a different result on whether this combination
encourages unlawful use, if the use is in fact unlawful (those do sound like disease/drug
claims).]

We are
in the midst of an historic expansion of internet domain names with more than
1200 new generic top-level domains (“gTLDs”) now competing with
<.com>. This 5000% increase in gTLDs is the biggest change to the
internet’s domain naming system in thirty years (and more are coming soon!). Accompanying
these new gTLDs, are new and innovative–but little known–IP rights protection
mechanisms. These developments could have a profound impact on the rights of IP
owners, domain name registrants, and the public, and on the architecture of the
internet.

1:30 Welcome, Christine Haight Farley,
American University Washington College of Law

Business dispute; of interest here, GeoMet asserted false
advertising against defendant AWSF because of two statements about Tempus, with
which it was working.However, both
statements about Tempus were made by Tempus, and thus couldn’t be the basis of
Lanham Act liability for AWSF.GeoMet
argued that “AWSF assisted Hall in making misleading statements about
Tempus[,]” and that “AWSF did not correct, and continued to promote, the Hall
Defendants’ misleading representations that they were replacing GeoMetWatch.” The
statements were made in emails sent by Tempus employees that AWSF
representatives received (and thus knew of).The court stated that it had seen “no authority for the novel
proposition that the Lanham Act imposes liability on an entity that has in some
way assisted another in making false or misleading statements of fact.”Stated this way, it’s too broad: secondary
liability is definitely a thing in Lanham Act false advertising cases.But it seems reasonable to doubt the idea
that the Lanham Act “imposes a duty on third parties to correct another’s false
or misleading representation of fact,” at least outside of cases in which the
third party itself makes some contribution to the misleadingness.So, merely receiving the emails couldn’t
trigger Lanham Act liability.